State v. Panduro, 050229CR.

• Court: Court of Appeals of Oregon
• Citation: 197 P.3d 1111,224 Or. App. 180
• Docket Number: 050229CR.,A131833.
• Parties: STATE of Oregon, Plaintiff-Appellant, v. Gerardo Reyes PANDURO, Defendant-Respondent.
• Decision Date: 03 December 2008

197 P.3d 1111

224 Or. App. 180

STATE of Oregon, Plaintiff-Appellant, v. Gerardo Reyes PANDURO, Defendant-Respondent.

050229CR.

A131833.

Court of Appeals of Oregon.

Argued and Submitted on June 27, 2008.

Decided December 3, 2008.

Kaye E. McDonald, Senior Assistant Attorney General, argued the cause for appellant. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Bronson D. James, Deputy Public Defender, argued the cause for respondent. With him on the brief was Peter Gartlan, Chief Defender, Legal Services Division, Office of Public Defense Services.

Before SERCOMBE, Presiding Judge, and BREWER, Chief Judge, and RIGGS, Senior Judge.

BREWER, C.J.

In this criminal case, the state appeals from the trial court's denial of its motion in limine to admit evidence of defendant's uncharged misconduct. OEC 404(3); ORS 138.060(1)(c). Defendant has moved to dismiss the state's appeal, arguing that his deportation has rendered the case moot and that permitting the state to pursue the appeal will deny him rights to a speedy trial and to counsel. On the merits, defendant asserts that the trial court properly excluded the state's proffered evidence, because it was not relevant to the crimes with which he was charged. We deny defendant's motion to dismiss and reverse.

We first address defendant's motion to dismiss the state's appeal. Defendant was deported from the United States on August 1, 2006; he argues that the state's appeal is moot because it is uncertain whether he will ever return to the United States or be brought to trial. That uncertainty, defendant reasons, will deprive our decision in this case of any "practical effect" on the rights of the parties. Defendant also argues that, because it is uncertain whether the state will extradite him or whether he will return to the United States, he has been deprived of his rights to counsel and to a speedy trial.

Defendant offers no evidence, and none appears in the record before us, to support his contention that the state will not extradite him or that a trial will not occur within a reasonable period of time. Moreover, defendant identifies no action by the state that deprived him of access to counsel; no evidence in the record indicates that defendant is unable to contact his counsel. Accordingly, we reject defendant's right to counsel and speedy trial arguments without further discussion.

The question whether a case is moot is "part of a larger two-part inquiry into whether a case is justiciable." State v. Lavitsky, 158 Or.App. 660, 663, 976 P.2d 82 (1999) (citing Brumnett v. PSRB, 315 Or. 402, 405, 848 P.2d 1194 (1993)). The first step is to determine whether "a case presents a controversy between parties with adverse interests," and the second step is to determine whether "the court's decision will have a practical effect on or concerning the rights of the parties." Id. Defendant has framed his motion to dismiss under the second step of the justiciability inquiry.

We previously have addressed mootness challenges in deportation cases, and our holding in Lavitsky disposes of defendant's mootness challenge here. We held:

"Regardless of defendant's release, our decision on the merits will still have a real effect on, or concerning, the rights of the parties. The relief the state seeks — a modification of defendant's sentence — is real and concrete, not abstract and hypothetical. That relief, if granted, will, as a matter of law, alter the state's rights and defendant's obligations under the sentence.

"* * * * *

"To be sure, defendant's impending or actual deportation may, as a practical matter, render enforcement of our decision problematic should we conclude that the trial court erred in sentencing defendant — viz., defendant may no longer be in the country and might never reenter the country. However, we will not base a decision about mootness on speculation that a decision on the merits may not have a practical effect."

Lavitsky, 158 Or.App. at 664, 976 P.2d 82 (emphasis in original). See also State v. Mercado-Vasquez, 166 Or.App. 15, 21, 998 P.2d 743 (2000) (holding same). In this case, the relief that the state seeks — admission of its evidence against defendant — is real and concrete, not abstract or hypothetical and will, as a matter of law, alter the state's rights and defendant's obligations. The possibility exists that defendant may not return to the United States, but to base our determination of mootness on that possibility would be speculative. We decline that invitation. Accordingly, we deny defendant's motion to dismiss, and we turn to the state's assignment of error.

The pertinent facts are procedural and not in dispute. Defendant was charged in a 10-count indictment with sex offenses that he allegedly committed against the victim, his daughter, between March 1996 and August 2005. Before trial, the state moved in limine to admit evidence of defendant's uncharged misconduct toward the victim that, it asserted, was admissible under OEC 404(3).¹ Defendant objected, arguing that the proffered evidence was irrelevant, unfairly prejudicial, or both. Defendant also argued that allowing the state to present in its case-in-chief evidence of his intent was improper, because he contemplated a defense strategy of denying that the acts took place. The trial court took the matter under advisement and issued a letter opinion excluding paragraphs one, three, and seven of the state's proffered evidence and admitting the remaining evidence based on the Supreme Court's decision in State v. Zybach, 308 Or. 96, 775 P.2d 318 (1989). The state now challenges the trial court's exclusion of paragraphs one, three, and seven of the state's proffer.²

We review the trial court's ruling on the admission of uncharged misconduct evidence for errors of law. State v. Titus, 328 Or. 475, 481, 982 P.2d 1133 (1999). For clarity, we separately set out and analyze each of the rejected proffers.

Paragraph one of the state's proffered evidence read:

"1) [The victim in the present case was born on] March 11th, 1987. On or between September 11th, 1997 and March 10th, 1999, when the victim was between 10 1/2 and 11 years old the family lived in a trailer and the victim had her own room. The defendant would use something to open the victim's bedroom door at night because it was locked and he would go inside. Once inside her room the defendant would take off her blankets without saying anything and would look at her in a way in which the victim took as a `sexual manner.' The victim reports that she remembers this happening about 7 or 8 times."

The trial court explained its decision to exclude the evidence described in paragraph one as follows:

"As to the issue of other crimes evidence, the Court denies the State's request as to items 1, 3 and 7. The state relies primarily on State v. Zybach, 308 Or. 96, [775 P.2d 318 (1989),] as a basis for admission of such evidence under 404(3). However, in Zybach, all such `other' acts were subsequent to the alleged crime. That is not true with the evidence proposed in paragraph 1. Further, the claim that the look by Defendant was in a `sexual manner' is vague and not really an overt act as is the touching or attempted touching which is the basis of the underlying crime. The Court denies admission on relevancy grounds."

The state's theory of admissibility, both in its motion in limine and on appeal, is that the evidence in paragraph one was relevant to show, among other things, defendant's sexual intent toward the victim under the five-factor test set out in State v. Johns, 301 Or. 535, 725 P.2d 312 (1986). However, the state also consistently has argued that the evidence in paragraph one was relevant to show that the victim feared defendant because of his repeated attempts to have sexual contact with her. That fear, the state reasons, was relevant to explain the lengthy delay between the beginning of the alleged abuse and the victim's reporting of it.

On appeal, defendant renews his argument that the evidence described in paragraph one was irrelevant to show his intent. Defendant relies primarily on the premise that, because he maintained that the charged acts did not take place, evidence of his intent was irrelevant and, in any event, could not properly be admitted in the state's case-in-chief. Defendant relies on our comment in State v. Leach, 169 Or.App. 530, 534-35, 9 P.3d 755 (2000), rev. den., 332 Or. 632, 34 P.3d 1179 (2001), that "there is a substantial and unresolved question as to whether `prior bad acts' evidence can ever be admitted as being relevant to intent where * * * the defense is that the charged crime never occurred," to support that proposition. As explained below, we need not reach defendant's argument concerning intent.

Because it is dispositive, we address only the state's argument under Zybach. In that case, the Supreme Court addressed the issue whether "evidence of encounters with a child victim * * * after an alleged rape occurred [were] admissible." Zybach, 308 Or. at 98, 775 P.2d 318. The rape was alleged to have taken place in mid-June 1985, and the victim claimed that the defendant had sought sexual contact with her another six times that year. In March 1986, after the defendant again approached her, the victim reported the incidents to her parents. The defendant was later arrested and charged with the rape alleged to have occurred in mid-June 1985. The court concluded that the evidence of the later encounters "was relevant to show why the child had not reported the original sexual assault. This is a type of uncharged misconduct evidence admissible under OEC 404(3), even though not included in the specific illustrations." Id. at 100, 775 P.2d 318. The court elaborated:

"The repeated association between the pursuer and the pursued was directly relevant to demonstrate why, having failed to complain about the initial sex act, the victim reported it when defen...